David Souter on School Choice

Disallow taxpayer funding for parochial school materials.

Justice Souter wrote the dissent on MITCHELL v. HELMS on Jun 28, 2000:

Chapter 2 of the Education Consolidation and Improvement Act channels federal funds for educational materials such as library media and computer software, to public and private schools to implement “secular, neutral, and nonideological” programs. About 30% of Chapter 2 funds spent in Jefferson Parish, Louisiana, are allocated for private schools, most of which are religiously affiliated. Respondents filed suit alleging that Chapter 2 violated the First Amendment’s Establishment Clause.

Held:

(Thomas, joined by Rehnquist, Scalia, and Kennedy) Chapter 2, as applied in Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated.

Concurrence:

(O’Connor, joined by Breyer)The expansive scope of the plurality’s rule is troubling. First, the plurality’s treatment of neutrality comes close to assigning that factor singular importance
in the future adjudication of Establishment Clause challenges to government school-aid programs. Second, the plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with our precedents and is unnecessary to decide this case. [Within those limits], I concur in the judgment.

Dissent:

(Souter, joined by Stevens and Ginsburg)The First Amendment’s Establishment Clause bars the use of public funds for religious aid. The plurality is candid in pointing out the extent of actual diversion of Chapter 2 aid to religious use in the case before us, and equally candid in saying it does not matter. To the plurality there is nothing wrong with aiding a school’s religious mission; the only question is whether religious teaching obtains its tax support under a formally evenhanded criterion of distribution. The plurality equates a refusal to aid religious schools with hostility to religion. I respectfully dissent.